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On the other hand, Sh. Girish Agnihotri, Ld. Senior Counsel for the respondent Corporation states the reliance by the petitioners on the order dated 27.11.2013 to contend that the 1000 posts of Linemen now advertised should be filled from the next 1000 candidates in merit as per CRA 267/ 11 is wholly misplaced. He states that in CWP No.4881 of 2011, the Court was only concerned with allegations of overstaffing and the resultant wasteful expenditure in the respondent Corporation and whether the recruitment of 5000 linemen was justified or not. The High Court had asked the Commission to submit its report with regard to this issue. The Commission in its report dated 19.9.2011 concluded that PSPCL/ PSTCL should recruit Linemen/ SSAs against CRA No. 267/11 in line with PwC reports. He asserts that this recommendation of the Commission has to be read in the in the light of the fact that the High Court had called for its report in the context of the challenge to the advertisement for recruitment of 5000 linemen through CRA CWP-227-2014 (O&M) -12- 267/11. It was in this background that the Commission stated that the Linemen/ SSAs against CRA No.267 of 2011 should be recruited in line with PwC report. The report of the Commission does not mean and could not be read to mean that all subsequent appointments of Linemen whenever made in later years are to be from the merit of CRA 267/11 till 5000 Linemen advertised thereby are appointed. He states that this would be akin to saying that a selection panel prepared far in excess of the available vacancies should operate indefinitely to fill vacancies which will arise in future as well, till the panel is exhausted. He states that in this case the number of vacancies to be filled up from out the merit of CRA 267/2011, has to be limited to the 1000 already appointed in 2011 itself, because that is what was sanctioned by the Court to be filled till Sept, 2011 based on the report of the Commission dated 19.9.2011. The remaining vacancies which are permitted to be filled up in the subsequent years, are the vacancies of the subsequent years and consequently would be future vacancies as far as the CRA 267/11 is concerned and cannot be filled up from the merit list of this advertisement.

25. From the above discussion of the case-law it becomes clear that the selection process by way of requisition and advertisement can be started for clear vacancies and also for anticipated vacancies but not for future vacancies. If the requisition and advertisement are for a certain number of posts only the State cannot make more appointments than the number of posts advertised, even though it might have prepared a select list of more candidates. The State can deviate from the advertisement and make appointments on posts falling vacant thereafter in exceptional circumstances only or in an emergent situation and that too by taking a policy decision in that behalf. Even when filling up of more posts than advertised is challenged the court may not, while exercising its extraordinary jurisdiction, invalidate the excess appointments and may mould the relief in such a manner as to strike a just balance between the interest of the State and the interest of persons seeking public employment. What relief should be granted in such cases would depend upon the facts and circumstances of each case."

The High Court was, therefore, right in holding that the selection of 19 persons by the Board even though the requisition was for 8 posts only, was not legally sustainable."

To the same effect are the observations in Mukul Saikia v. State of Assam, (2009) 1 SCC 386, at page 395 :

"33. At the outset it should be noticed that the select list prepared by APSC could be used to fill the notified vacancies and not future vacancies. If the requisition and CWP-227-2014 (O&M) -20- advertisement was only for 27 posts, the State cannot appoint more than the number of posts advertised, even though APSC had prepared a select list of 64 candidates. The select list got exhausted when all the 27 posts were filled. Thereafter, the candidates below the 27 appointed candidates have no right to claim appointment to any vacancy in regard to which selection was not held. The fact that evidently and admittedly the names of the appellants appeared in the select list dated 17-7-2000 below the persons who have been appointed on merit against the said 27 vacancies, and as such they could not have been appointed in excess of the number of posts advertised as the currency of select list had expired as soon as the number of posts advertised are filled up, therefore, appointments beyond the number of posts advertised would amount to filling up future vacancies meant for direct candidates in violation of quota rules. Therefore, the appellants are not entitled to claim any relief for themselves. The question that remains for consideration is whether there is any ground for challenging the regularisation of the private respondents."

CWP-227-2014 (O&M) -21- Filling up the vacancies over the notified vacancies is neither permissible nor desirable, for the reason, that it amounts to "improper exercise of power and only in a rare and exceptional circumstance and in emergent situation, such a rule can be deviated from and such a deviation is permissible only after adopting policy decision based on some rationale", otherwise the exercise would be arbitrary. Filling up of vacancies over the notified vacancies amounts to filling up of future vacancies and thus, is not permissible in law. (Vide Union of India v. Ishwar Singh Khatri, Gujarat State Dy. Executive Engineers' Assn. v. State of Gujarat, State of Bihar v. Secretariat Asstt. Successful Examinees Union 1986, Prem Singh v. Haryana SEB and Ashok Kumar v. Banking Service Recruitment Board.)"